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People v. Cibrian

California Court of Appeals, Fifth District
Sep 25, 2008
No. F054488 (Cal. Ct. App. Sep. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO CIBRIAN, Defendant and Appellant. F054488 California Court of Appeal, Fifth District September 25, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge. Super. Ct. No. VCF180120.

Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

Before Wiseman, Acting P.J.; Levy, J.; and Kane, J.

Appellant Gustavo Cibrian was charged with assaulting and molesting A.J. and L.J. He entered into a negotiated plea agreement and, in exchange for a sentence of 13 years and four months, pled no contest to one count of violating Penal Code section 288, subdivision (b), two counts of violating section 288, subdivision (c)(1), one count of violating section 647.6, subdivision (a), and one count of violating section 459. He was sentenced to the agreed upon term of imprisonment. During the court’s oral pronouncement of sentence, it prohibited appellant from visiting any child under the age of 18 (the no-contact order). The minute order of the sentencing hearing provides that appellant is prohibited from visiting any child victim or victims under 18 years of age.

Unless otherwise specified all statutory references are to the Penal Code.

Appellant contends that the no-contact order as pronounced by the court is unauthorized. Respondent properly concedes this point.

When appellant entered the no contest pleas, he waived his appellate rights. However, the probation report did not recommend imposition of the no-contact order and appellant was not informed during the change of plea proceeding that such an order could be made. The voluntariness of an appellate rights waiver is reviewed de novo. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) Having examined the record, we conclude that appellant neither agreed to the no-contact order imposed by the court nor knowingly waived the right to contest it on appeal. Furthermore, an unauthorized sentence is subject to judicial correction at any time. (People v. Smith (2001) 24 Cal.4th 849, 852.) Normal theories of forfeiture are inapplicable to a sentence that is not legally authorized. (People v. Scott (1994) 9 Cal.4th 331, 354.) Therefore, we conclude that this sentencing challenge is cognizable.

Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) When there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)

The no-contact order orally pronounced by the court is not authorized by section 1202.05. Subdivision (a) of this section provides that when a person is sentenced to state prison for specified sexual offenses including violation of section 288 and the victim of one or more of the offenses is a minor, the court shall prohibit all visitation between the defendant and the child victim or victims. (§ 1202.05, subd. (a).) It does not authorize an order prohibiting visitation with all minors. A sentencing court has a duty to impose the punishment prescribed by law. It does not have any discretion to deviate from that punishment. (People v. Superior Court (Peterson) 12 Cal.App.4th 16, 20.)

Thus, the no-contact order is unauthorized and must be stricken. The no-visitation provision of section 1202.05, subdivision (a) is mandatory and must be included in the judgment. Since this modification is a pure question of law with only one answer, it is proper to correct this sentencing error now. (See People v. Smith (2001) 24 Cal.4th 849, 852-854.)

DISPOSITION

The judgment is modified to prohibit all visitation between appellant and the child victims, A.J. and L.J., in conformity with section 1202.05. The no-contact order is stricken. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this modification and to send a certified copy of the amended abstract to the Department of Corrections.


Summaries of

People v. Cibrian

California Court of Appeals, Fifth District
Sep 25, 2008
No. F054488 (Cal. Ct. App. Sep. 25, 2008)
Case details for

People v. Cibrian

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO CIBRIAN, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Sep 25, 2008

Citations

No. F054488 (Cal. Ct. App. Sep. 25, 2008)